January 17, 2006

In the WaPo, Ruth Marcus expresses her frustration with the way John Roberts and Samuel Alito talked about the role of the judge at their confirmation hearings. They presented themselves as humble, neutral interpreters of legal texts. She appeals to Judge Richard Posner for more insight:

As much as a court "is supposed to be tethered to authoritative texts," Posner writes, the Supreme Court often finds itself facing issues to which "the constitutional text and history, and the pronouncements in past opinions, do not speak clearly." It is in that "broad open area where the conventional legal materials of decision run out, and the Justices, deprived of those crutches, have to make a discretionary call."

Such cases, as Posner notes, inevitably bring into play competing conceptions of social good, without solutions that can be derived with certainty: the desire to ensure public safety vs. the need to protect those accused of crimes; the rights of the fetus vs. a woman's autonomy; the importance of colorblindness vs. a recognition of the legacy of discrimination; religion as a positive force in public life vs. the risk of marginalizing the minority. On a more elevated but even more important plane, different judges bring to the bench different attitudes about presidential power, federalism and constitutional interpretation.

What has been so disappointing about the nominees' testimony is their unwillingness to engage in this discussion in an honest, meaningful way. What has been so maddening about the questioning is the senators' inability to penetrate their platitudes or robotic restatements of the law. Because thinking hard isn't enough....

Can we picture a new, improved Senator who could penetrate the facade? Much as the Senators exasperate me, I think not. The neutral-expositor-of-the-law pose is so effective and appealing that it is highly unlikely that a nominee -- conservative or liberal -- will relax into a more revealing position. Posner's insights are important, but they are mostly accounted for at the point when the President makes his selection. He must pick someone whose instincts and judgments deserve our trust. Beyond that, the Senators may find things out about the leanings of the nominee, but, unless the President has blundered, they are unlikely to uncover something serious enough to overcome the sense that a highly qualified nominee warrants confirmation.

13 comments:

I find it interesting that the article seems to focus on how the nominee behaved... and not the Senators. Does nobody think that if the Senators acted in a more straightforward way, non-partisan way, that they might draw more answers out of the nominees?

Instead they acted like interrogators, and attacked the nominee. I thought these were the same Senators who said torture didn't work. Why don't they heed their own wisdom?

Many major newspapers disagree with the comments in this article. In fact, the Chicago Tribune stated "Having survived the hazing ritual known as a Senate Judiciary Committee confirmation hearing, Judge Alito has demonstrated that he should be confirmed for the Supreme Court." Plus, the fact that Justice Ginsburg set a precedence with her lack of "revealing" and that pointed us in the direction we are now.

Nick, you're dead on. I remember one of the Senators claiming on that topic of interrogation that coercive measures don't work and, instead, we should try to build rapport with terrorist prisoners. I don't think we saw that with someone who was a bit less of a hostile witness.

We'll never see relaxed, revealing positions from nominees because they know that the only reason their interrogators want them to be so only want to find fuel for the demagoguery fire.

On the topic of Posner and his more open demeanor in his writings: wasn't his willingness to be open about opinions and musings are reason to doubt him as an O'Connor replacement precisely because people thought his prolific writings would yield a treasure trove of things to use to ankle-bite him to death?

I do, however, enjoy Posner's blog and his openness and wide range of topics. It's great to see these smart people with respected positions just talk and opine without being overly cautious to the political consequences of every little thing they say.

One of the recent things I read by Posner that I enjoyed actually wasn't an opinion piece or blog entry, but a court opinion in American Amusement Machine Association v. Kendrick. It came up in some article related to recent video game laws and their constitutional battles. In the opinion, Posner includes video games in a very broad definition of literature. He then goes on to describe games like House of the Dead, Ultimate Mortal Kombat 3 and others in such a dramatic fashion, that I think it was just as fun to imagine it through his words as it was to grow up playing those games. It also made me wonder, did he research these games by playing them extensively or was he already skilled and knowledgeable in this area?

I have to disagree with Ann, and some of you folks as well. The Senate has a legitimate constitutional role to play -- their advice and consent is not a constitutional error, it is a requirement. And we would all like that advice and consent to be informed, wouldn't we? So, effective questions that actually get to the nub of how a nominee approaches his duties (constituitonal interpretation, statutory interpreation) is incredibly important to this process.

Now, I still think that the Democrats behaved like a bunch of irresponsible, braying asses. I wanted to hear pertinent questions, and all they did was grandstand. And from what I know, I want Judge Alito to be qualified.

But he will should be confirmed, or not, based on how he will actually behave as a judge. And Judge Posner's model of judicial behavior is far more apt as it applies to a SCOTUS Justice than is this "neutral umpire" model they keep putting forward.

Simply put, he is going to have to handle a lot of close calls, a lot of issues of first impression where the constitutional or statutory text is ambiguous. This is where questions that get to the heart of how he interprets texts, and also, of what some of his normative views are, would be helpful.

How would the Senators do this? They would get good crib notes from people who actually understand con law. They would ask answers in ways where they were actually focused on getting answers, rather than making speeches. And they would ask questions oriented more towards theory and views, and less towards cases and controversies.

Will it happen? Never. But it doesn't mean it isn't what should happen, and what the framers probably wanted...

The main problem with this is that the Democrats, for the last 40 years, have focused on legislating their agenda from the Bench, rather than winning elections and getting their agenda via democracy. So no intelligent person considers Democrat Senators to be honest questioners of Republican nominees.

The second problem is that the Democrat Senators, by wedding themselves to the clearly illegitimate Roe decision, are trapped into asking lame Roe related questions, instead of the kind of questions that Posner mentioned.

Congress has ceded much of its legislative authority to the courts and the executive. They see everyone as the same political animal. The President being elected by all the people is just another one of them from a larger constituency. Judges must be political how else would they be nominated?

I await the case that unravels Congress' delegation of its legislative power. Until then Congress will write mushy laws that the executive will enable with regulations and which will be tightened, defined and overruled by the courts.

"I await the case that unravels Congress' delegation of its legislative power."

You are going to have to wait a very, very, very long time. The Court has repeatedly said, unanimously, that the non-delegation doctrine is all but dead and buried. There hasn't been a succesful delegation challenge since Schecter Poultry in the 30s.

This is for the Supreme Court scholars out there. Everyone is disenchanted with the quality of modern confirmation hearings, including me. Can anyone point to an historical confirmation hearing, or better yet a period of hearings, that are generally considered substantive and well done?

I seems to me if committee members are serious (ha!) in their wish to better know a nominee they might include questions that get at various life experiences (obviously more nuanced than exampled here), e.g., have you ever had a personal acquaintance or friend who had an abortion, what was your relationship to her, were you conflicted by the knowledge of the abortion, did it change your attitude towards that person, did it affect your outlook on abortion, how so......

If he had no personal acquaintance other questions in the abstract could be pursued.

At minimum it would reveal a living, breathing person and not some horned evil incarnate or automaton.

Is this a legitimate and/or profitable line of questioning.....too touchy, feely?

The problem with Posner's argument is that most of the issues he identifies as falling into a "broad open area where the conventional legal materials of decision run out" actually are quite capable of resolution by reference to constitutional text.

The "rights of fetus" vs. autonomy question might be an interesting one in the abstract, but it is only a constitutional question insofar as we indulge the fictions that a right to privacy can be read into the due process clause and that such right encompasses a right to obtain abortions. Likewise, the "colorblindness v. recognition of the legacy of discrimination" issue is a worthwhile topic of debate in the legislative branch, but it shouldn't be a constitutional question at all: our constitution commands not preferential treatment (even with the best of motives) but equal protection of the laws.

The rigidity of both Roberts and Alito in sticking to the "neutral interpreters" view of their role as Justices is actually more informative than the Washington Post article suggests. If they sincerely hold and adhere to this view, there is a chance the Court will shift toward leaving legislative decisions to the legislators and faithfully limiting itself to its proper role within our constitutional system. In the long run this is preferable to having Justices who can brilliantly analyze and resolve issues like those Posner lists, but who in doing so usurp the power of democratically elected legislators. Respect for the proper role of the Supreme Court may not be as sexy as the idea of Justices as philosopher kings, but the purpose of the hearings is not to entertain us.

I would like to think that the testimony of Roberts and Alito reflected not only an aversion to the risk of stating an unpopular position but also a humility and understanding of the role of judges in our system. We'll see.

I would like to note that Roberts and Alito were not the first nominees to define what a nominee could/should not answer. I believe we've all hear of a little thing called the "Ginsburg Precedent." I mean I know somebody's gotta do it, but it just seems humorous to me that this obviously unqualified Senators are asking these brilliant men/women questions about subjects they no little to nothing about...it's quite a comedy act.